1. The answer to this reference depends on whether the provision in Section 565 of Chapter XLI of the Civil Procedure Code is to be followed by the High Court in disposing of second appeals, by which, when the evidence on the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court shall, after re-settling the issues if necessary, finally determine the case. If it is, it would be incumbent on this Court to try issues and determine questions of fact essential to the right decision of the suit, in all cases when the evidence on the record is sufficient to enable the Court to do so, and it could only refer issues when the case falls under Section 566, that is, when the evidence on the record was not sufficient.
2. But the provisions of Chapter XLI are by Section 587 to be applied in second appeal only 'as far as may be.' Those words may, I think, be taken to mean so far as the provisions are consistent with the due discharge of the functions of the High Court as a Court of second appeal. Now, looking to the provisions of Chapter XLII, which deals with second appeals, it was not the intention of the Legislature that the High Court, sitting as a Court of second appeal, should determine questions of fact on the evidence. The only grounds on which second appeals are cognizable, are those mentioned in Section 584, which relate to errors of law or usage having the force of law, or substantial error or defect in procedure which may possibly have produced error or defect in the decision of the case on the merits. Those are the only grounds of which notice can be taken, and I do not think it was contemplated that after an appeal has been admitted on such grounds the whole case would be opened, so as to enable the High Court to deal with it under Section 565. The Court would be constituting itself a Court of first appeal.
3. I am of opinion therefore that, in the cases referred to, this Court is at liberty to remit issues for determination by the Court below. Such, too, has been the practice of this Court for years, and it is undesirable to alter it. I am constrained therefore to modify the opinion I expressed in Deokishen v. Bansi,
John Edge, Kt., C.J.
4. If the practice in this Court had not invariably been that the Division Benches in second appeals should not determine issues of fact, I might have thought it a matter of some doubt whether or not Section 566 of the Code applied to second appeals. But as I find that this has been the practice of the Benches of this Court for many years, during which the Court has been composed of many Judges of great eminence and experience, I think that the prevailing practice should guide us as to the construction to be placed on Section 587. The question has practically been raised only recently, and if the practice had been wrong in the opinion of the Bar and the Court, it would, I assume, have been raised before, and the practice would not have become established. Moreover, I find that the practice of the Calcutta High Court is the same, and I infer from a judgment which was mentioned during the argument yesterday that there is the same practice at Madras also, Hinde v. Brayan I. L. R., 7 Mad., 52. Under these circumstances, I do not feel myself justified in differing from my brother Oldfield, or in expressing any doubt in the matter.
5. It is with, much satisfaction that I have heard the remarks of my brother Oldfield with reference to the decision of the Full Bench in Deokishen v. Bansi, I.L.R., 8 All., 172, to which he was a party, and in regard to which he now says that he has modified his former opinion. I think that, in a matter of this kind, the maxim optimus interpres rerum est usus is applicable, and that what has been the unvarying practice of the Court in regard to Section 566 of the Code, at all events since I have been a member of the Court, should continue to be followed until it has been shown that it is so unreasonable and unsatisfactory that injustice is caused by following it. I adhere entirely to all that I said in the case of Balkishen v. Jasoda Kuar I. L. R., 7 All., 765, which, in the case of Deokishen v. Bansi I. L. R., 8 All., 172, I re-affirmed; and I cannot but again express any satisfaction that, in accordance with the opinion of my brother Oldfield, we are about to return to our old practice.
6. I adhere to the opinion I expressed on a former occasion, and I concur in the judgment of my brother OLDFIELD.
7. The Court's practice being now settled in the matter, I have nothing further to say on the subject.
8. [The case again came before a Division Bench, which consisted of OLDFIELD and BRODHURST, JJ., and BRODHURST, J., not having been a member of the Bench before whom it was originally heard, it was re-argued.]
9. Munshi Kashi Prasad, for the Appellant.--The Lower Appellate Court should, upon the evidence, have held that the respondent's wife in contracting the debts in question acted as his agent. The parties were cohabiting together, the household management was in the wife's hands, and the debts appear to have been contracted for the purpose of obtaining money to be applied in the purchase of medicines and other necessaries. Although at common law it has been held that there is a distinction between debts contracted for necessary purposes and loans taken for the purpose of paying such debts, no such distinction obtains in equity.
10. Mr. A. Strachey, for the Respondent.--This case is governed by the principle laid down by the House of Lords in Debenham v. Mellon, 6 App. Cas. 24; L. R., 5 Q. B. D., 394, namely, that the liability of a husband for debts contracted by his wife depends upon the general principles of agency, and that whether agency has or has not been proved in a particular case is always a question of fact. This is so, even where the husband and wife are living together, and where the debts are contracted for necessary purposes, If, however, it is merely a question of fact, the Lower Appellate Court has recorded a distinct finding upon that question, and there is no ground for interference in second appeal. Further, it has not been shown that the debts in this case were contracted for necessary purposes, and the action of the respondent in giving his wife an allowance sufficient for necessary purposes excludes the supposition that he intended to authorize her to contract debts on his account.
11. Munshi Kashi Prasad in reply.
Oldfield and Brodhurst, JJ.
12. This suit has been brought to recover the amount of money lent by the plaintiff to the defendant, Mrs. Crawford, on her notes of hand, and has been brought against her and her husband. The Lower Appellate Court has disallowed the claim against the husband, and hence this second appeal. The appeal in our opinion must fail. The Judge has rightly held that the liability of a husband for his wife's debts depends on the principles of agency, and he can only be liable when it is shown that he has expressly or impliedly sanctioned what the wife has done. In the present case, the Judge has held that there is no express or implied agency, and the circumstances under which the debts were contracted support this view. It is not a case where agency might be implied, as for instance, of money lent to a wife to meet some emergent need, but of successive borrowings over a considerable period, the debt having increased by high rates of interest. We dismiss the appeal with costs.